COURT FILE NO. CV-19-622512 DATE: 20240111 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PAUL ALEXANDER ROBSON Applicant – and – LAW SOCIETY OF ONTARIO Respondent

Counsel: Paul Alexander Robson, self-rep and acting in person, Applicant Rhoda Cookhorn, Lawyers for the Respondent

HEARD: November 6, 2023

REASONS FOR DECISION

G. DOW, J.

[1] The applicant, member or licensee of the respondent, Law Society of Ontario (“Law Society”) seeks a declaration under Rule 14.05(3)(d) that the Law Society’s Rule 15.01(1) with regard to how legal costs in Law Society’s hearings and appeals involving its licensee is ultra vires or null and void. The hearing of the application was combined with the Law Society’s motion to dismiss (what became an Amended) Notice of Application, without leave to amend, under Rule 21 on the basis that it was either an abuse of process or disclosed no reasonable cause of action.

[2] Before proceeding with the hearing of this matter, I addressed Mr. Robson’s request for assistance in his submissions from Richard Keith Watson. Mr. Watson is also a member of the Law Society but his license is currently under suspension. Given same, the Law Society objected to his right to make any submissions on behalf of Mr. Robson. I agreed with that position.

[3] Alternatively, I was alerted on November 3, 2023 that Mr. Watson wished to add an application that he had commenced against the Law Society seeking the same relief and make submissions on that basis. Again, counsel for the Law Society objected. No materials had been filed or uploaded to CaseLines and thus I had not reviewed such material to determine the propriety or accuracy of that submission. Further, only the Robson matter had been scheduled to proceed on November 6, 2023 with the Confirmation Form filed by the parties indicating that oral submissions would take between 3 hours to the full day. (It should be noted, with my commending the parties for their concise submissions, that oral submissions were completed in under 3 hours). As a result, I rejected the request the Watson matter be included or that I hear any submissions from Mr. Watson.

Background

[4] Mr. Robson has been the subject to prior disciplinary hearings with the Law Society. Any of those proceedings, post 2013, provided him with the opportunity to address the lawfulness of the impugned costs regime. That has not occurred. This application was the alternative. The Law Society Act, R.S.O. 1990, c. L.8 sets out the Province of Ontario’s statutory authority for the regulation of lawyers in the province. It was amended in 1999 and subsequently. At the core of this dispute is Section 61.2(2) which provides for:

“Without limiting the generality of subsection (1), Convocation may make rules of practice and procedure,

(a) governing the circumstances in which orders may be made under this Act, and …

(i) governing the awarding of costs under Section 49.28”.

[5] This resulted in the Law Society’s Rules of Practice and Procedure including the provisions which were amended in 2009 and became Rule 15 which states the following:

Rule 15.1(1) Costs may only be awarded against the Law Society,

a) in a licensing, conduct, capacity, competence or non-compliance proceedings, where the proceeding was unwarranted, or where the Law Society caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or the default; or

b) in a proceeding not mentioned in clause (a), where the LawSociety caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default”.

Analysis

[6] As a member of the Law Society, Mr. Robson analogized his position to that of a shareholder in a not-for-profit corporation. This is disputed by the Law Society which noted that Section 6 of the Law Society Act, supra, expressly states: “The Not-for-Profit Corporations Act, 2010 does not apply to the Society, except as may be prescribed by regulation” which was not disputed by the parties has not occurred.

[7] At the core of Mr. Robson’s submissions was the issue of whether legal costs are substantive or procedural. The issue has been addressed by courts outside Ontario and I was directed to decisions from Alberta and the United States which concluded costs were substantive. The Ontario decision relied on by Mr. Robson, Ontario (Attorney General) v. Ontario Review Board (2009), 95 O.R. (3d) 698 (ONSC) addressed whether the Ontario Review Board had the authority to order the costs of a psychiatric assessment of an individual being detained under the Criminal Code as a person not criminally responsible for their actions to be payable by the Attorney General. In the analysis, the judge concluded that the costs were substantive in nature and beyond the jurisdiction of the Ontario Review Board to make such an order.

[8] However, within the reasons, the judge acknowledged a “tribunal may make such order only with express authority”. No comparable section to that bestowed on the Law Society and Section 61.2 was referenced. As a result, I find that decision to be distinguishable.

[9] In addition, the subject of “costs” being the expense associated with conducting a psychiatric assessment differs from that of retaining counsel before an administrative entity such as the Law Society.

[10] Our Court of Appeal addressed this issue in a tort choice of laws decision (Somers v. Fournier, 2002, 162 OAC 1). In that decision, Ontario residents were involved in a motor vehicle accident in New York State with a vehicle driven and owned by a New York resident. The action for damages, interest and costs was commenced in Ontario and the defendants attorned to the jurisdiction of the Ontario Court. The defendants sought to have the substantive law of New York apply. Within the decision, the Court of Appeal agreed with the motions judge (at paragraph 19) that costs are a procedural matter and quoted the motion’s judge as follows: “Costs are defined in part of our civil litigation process. They are appropriately characterized as procedural since with the discretion granted, particularly to trial courts, the “machinery” of the Court can be enabled to work effectively. A particular example of the operation of that machinery is seen in the application of Rule 49 dealing with offers to settle”.

[11] The framework for the awarding of costs in civil litigation is similar to that provided to the Law Society. Our courts are provided with the authority and discretion to make such awards under Section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43 with the parameters and guidance to do so contained in Rule 57 of the Rules of Civil Procedure. I have concluded this favours the position of the Law Society.

[12] Mr. Robson’s concerns and objection is with the admitted asymmetrical nature of the guidance given in Rule 15. That is, the incentive not to award costs against the Law Society. This is responded to by the Law Society on the basis of the Law Society’s role in protecting the interest of the public. It should be noted that the term “unwarranted” has been the subject of legal interpretation to mean “without reasonable justification, patently unreasonable, malicious, taken in bad faith, or for a collateral purpose” Speciale (Re).

[13] This led to submissions and reliance on municipal decisions where by-laws which prohibited certain activity under the guise of regulation have been struck out. Mr. Robson relied on such an interpretation for the wording used and legal interpretation given to “unwarranted”.

[14] The Law Society responded with a series of decisions such as Speciale (Re), supra where the test was met and costs awarded to the lawyer (see Footnote 21 to the Law Society’s factum, at paragraph 32).

[15] Again, I prefer the reasoning and position as set out by the Law Society.

[16] Finally, Mr. Robson urged me to consider and adopt the dissenting reasons of Andrew Oliver in The Law Society of Upper Canada v. Richard Keith Watson, 2014 ONLSTH 75. That decision expressly addressed the issue before me. The dissent concluded, as urged by Mr. Robson, that (now) Rule 15 is not practice and procedure given it removes the hearing or appeal panel’s discretion as conferred on it by the legislature to determine, stated in Section 49.28 of the Law Society Act, supra “by whom and to what extent costs shall be paid”.

[17] I prefer the reasons of the majority. Section 61.2 of The Law Society Act, supra provides for Convocation to make rules of practice and procedure before its hearing and appeal divisions. That Convocation did so in a manner which established different criteria for awarding costs against the Law Society and one of its licensees was within the legislative content which was enacted.

[18] It should also be noted there was an opportunity to have this issue raised in a Divisional Court decision to which I was referred during submissions, Watson v. Law Society of Ontario, 2023 ONSC 1154. I confirmed with counsel that it was not raised although other aspects of the costs decision were addressed.

[19] Following the close of submissions and while this decision was under reserve, counsel for the Law Society (without the stated consent of the applicant and apparently contrary to Rule 1.09) forwarded to my attention the decision of the Divisional Court, Mammarella v. Ontario College of Teachers, 2023 ONSC 6654 (released November 27, 2023) indicating it was relevant and offered to provide written submissions. I reviewed that decision. It does not alter my reasons stated above. As a result, no additional submissions are required from either party.

Conclusion

[20] As a result, the application is dismissed.

[21] Counsel for the Law Society raised the need for its motion to proceed first. However, given both were heard together, I prefer to and have dealt with the substance of their motion in these reasons.

[22] Had only the Law Society motion to dismiss being addressed, I would have and do find in favour of the Law Society on the basis the application has no reasonable prospect of success and should be struck, without leave to amend.

Costs

[23] As required by Rule 57.01(6), counsel for the Law Society had uploaded its Costs Outline which totalled $14,364 for partial indemnity fees not included was the claim for additional HST (which I calculate to be $1,867.32). Disbursements were incurred in the amount of $339 for a total $16,570.32.

[24] Mr. Robson had prepared but had not uploaded his claim for costs and undertook to do so by the end of the court day. He indicated that it approached $40,000. The uploaded version notes partial indemnity fees at $19,726.41 plus disbursements of $357.97. I was advised no offers to settle had been made. Mr. Robson acknowledged the claim made by counsel for the Law Society was not inappropriate in the circumstances and I award the Law Society costs fixed in the amount of $16,570.32, all inclusive, payable forthwith.

Mr. Justice G. Dow Released: January 11, 2024